Perry v. Judd et al

Filing 64

Reply to 36 Memorandum in Opposition, 35 Response to Motion for Preliminary Injunction filed by Rick Perry. (Bagnell, Edward)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
THE HONORABLE RICK PERRY,
Plaintiff,
NEWT GINGRICH, JON HUNTSMAN,
JR., and RICK SANTORUM
Intervernor-Plaintiffs
v.
CHARLES JUDD, KIMBERLY
BOWERS, and DON PALMER, members
of the Virginia Board of Elections, in their
official capacities, and PAT MULLINS, in
his official capacity as Chairman of the
Republican Party of Virginia,
Defendants.

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Civil No. 3:11-CV-856

Plaintiff’s Response to Defendants’ Memorandum in Opposition to Plaintiff’s
Motion for Preliminary Injunction
Plaintiff, The Honorable Rick Perry, submits the following brief in response to
Defendants’ memorandum in opposition to Plaintiff’s motion for preliminary injunction.
Introduction
In his brief filed with the Court on January 6, 2012, Plaintiff clearly established
section 24.2-545 B of the Virginia Code violates his constitutional rights. As the District
Court noted in its January 10, 2012 Order, “the authorities make clear that circulating
petitions for candidates is a form of protected speech, and that the Commonwealth has a
heavy burden to justify the restriction on speech by showing not only that the limitation
achieves a valid state interest but also that the limitation is no broader in scope than
necessary to achieve that purpose.”
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Defendants failed to even attempt meet this burden in their memorandum in
opposition to Plaintiff’s motion for preliminary injunction, which wholly fails to offer any
specific state interest, much less a compelling interest, that justifies the state infringement
of Plaintiff’s constitutional rights. Plaintiff addressed the justifications generally cited by
states in support of such restrictions of constitutional rights and demonstrated why each of
those justifications fail. For this reason, along with the reasons discussed in Plaintiff’s
opening brief, Memorandum in Support of its Emergency Motion for Temporary
Restraining Order and Preliminary Injunction and herein, the Court should grant Plaintiff’s
request for injunctive relief and order that Plaintiff’s name be placed on the ballot.
Plaintiff Meets the four Winter Factors
A court may issue a preliminary injunction if it determines that: (1) the plaintiff is likely
to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of the equities tips in the plaintiff's favor, and (4) an injunction
is in the public interest. W. Va. Assoc. of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553
F.3d 292, 298 (4th Cir. 2009) (applying Winter v. Natural Res. Def. Council, 555 U.S. 7, 19
(2008)). Defendants assert Plaintiff must meet even a higher standard and “demonstrate that he
is virtually certain to prevail” in the case on the merits. The case cited by Defendants, Lux v.
Rodriguez, 131 S.Ct. 177 (2010), does not support this assertion. Upon meeting the Winter
factors, the Plaintiff is entitled to injunctive relief.
If the Court finds the injunctive relief requested by Plaintiff is essentially all the relief to
which he would be entitled after a trial on the merits, the Court merely analyzes injunctive
requests with more caution and analyzes whether the Winter factors “weigh heavily” in
Plaintiff’s favor. As noted in the Court’s January 10, 2012 Order, the Court found a “strong

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likelihood” it will find section 24.2-545 B of the Virginia Code unconstitutional; “the harm to
[Plaintiffs] would obviously be irreparable”; and the “public interest . . . weighs heavily in favor
of the plaintiffs.” Accordingly, the Court is already analyzing this case with more caution and
applying the correct legal standards.
I.
Plaintiff is likely to Succeed on the merits.
A.
Virginia’s State Residency Requirement
As outlined in Plaintiff’s brief, the severe burdens Virginia’s election law places on
Plaintiff’s First Amendment rights subjects the law to an analysis under the strict scrutiny
analysis. The First Amendment states that “Congress shall make no law . . . abridging the
freedom of speech . . . or the right of the people peaceably to assemble.”1 U.S. CONST. AMEND. I.
Virginia's state-residency requirement abridges the freedoms of speech and association in
violation of this mandate. See e.g. Wash. State Grange v. Wash. State Republican Party, 128 S.
Ct. 1184, 1191 (2008); Clingnzan v. Beaver, 544 U.S. 581, 586 (2005); Cal. Democratic Party v.
Jones, 530 U.S. 567, 582 (2000); Buckley v. American Constitutional Law Foundation, Inc., 525
U.S. 182, 192 n.12; Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Burdick
v. Takushi, 504 U.S. 428, 434 (1992).
Virginia’s state-residency requirement abridges Plaintiff’s First Amendment speech and
associational rights in at least four ways:
1. It impacts his ability to disseminate his political views by restricting the number
of message carriers who can gather signatures on his behalf, and in turn, the size
of the audience that can be reached. See Buckley, 525 U.S. at 194-95
(recognizing burden imposed by Colorado law that restricted the number of
petition circulators who could disseminate plaintiffs’ message, and therefore, the
size of the audience that could be reached).

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The First Amendment is applicable to the states pursuant to the Fourteenth Amendment to the United States
Constitution. Thornhill v. Alabama, 310 U.S. 88, 95 (1940).

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2. It prevents Plaintiff from choosing what he believes to be the most effective
means of conveying his message. See Meyer v. Grant, 486 U.S. 414, 424 (1988)
(First Amendment protects person's right to “select what [he] believe[s] to be the
most effective means” for advocating his cause).
3. It restricts Plaintiff’s ability to associate in a meaningful way with individuals that
sign his petition for the purpose of eliciting political change. See id. at 421-22
(First Amendment protects right to advocate for political change).
4. It impacts his ability to gain access to the ballot, and therefore, his ability to make
his candidacy the subject of nation-wide discussion. See id. at 423 (recognizing
burden imposed by Colorado law that limited plaintiffs' ability to make their
ballot proposal “the focus of statewide discussion”).
The Supreme Court has uniformly held that laws that severely burden speech and
association protected by the First Amendment are subject to a strict scrutiny analysis and must be
narrowly tailored to serve a compelling governmental interest (“strict scrutiny”). Wash. State
Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191 (2008); Clingnzan v. Beaver,
544 U.S. 581, 586 (2005); Cal. Democratic Party v. Jones, 530 U.S. 567, 582 (2000); Buckley v.
American Constitutional Law Foundation, Inc., 525 U.S. 182, 192 n.12; Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Accordingly, Virginia’s state-residency requirement is subject to strict scrutiny because it
imposes a severe burden on Plaintiff’s freedoms of speech and association.
When a state regulation severely burdens First Amendment rights, the burden is on the
government, even at the preliminary injunction stage, to prove that the restriction is narrowly
tailored to serve a compelling government interest. Citizens United v. FEC, 130 S. Ct. 876, 898
(2010); see also Meyer, 486 U.S. at 428 (law at issue “imposed a burden on political expression
that the State . . . failed to justify”); Buckley, 525 U.S. at 195 (same) (quoting Meyer); see also
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006)
(observing that in Ashcroft v. ACLU, 542 U.S. 656, 666 (2004), the Court appropriately granted a

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preliminary injunction “where the Government had failed to show a likelihood of success under
the compelling interest test” (emphasis added)).
To satisfy its burden, a state must provide more than speculative, categorical answers. See
Gonzales, 546 U.S. at 430-31 (strict scrutiny is not satisfied by a “categorical approach,” but
rather, requires a case-by-case determination of the question). In other words, the government
“must do more than simply posit the existence of the disease sought to be cured. It must
demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in
fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622,664 (1994) (citation and internal quotation marks omitted); see also Meyer, 486 U.S. at
426 (refusing to accept state’s bald argument that paid circulators might be more tempted to
cheat than volunteer circulators where the state offered “[n]o evidence…to support that
speculation”).
In this case, Defendants have failed to set forth a single narrowly tailored, compelling state
interest which would justify the burdens Virginia’s state-residency requirement places on
Plaintiff’s First Amendment freedoms of speech and association. Accordingly, Plaintiff has
carried his burden to show he is likely to succeed on the merits.
B.
Virginia’s Signature Requirement
The required amount of signatures on a petition to be a party’s candidate for the office of
President of the United States combined with Virginia’s residency requirement is simply
unreasonably burdensome and is not narrowly tailored to meet a compelling governmental
interest. As discussed in Plaintiff’s brief, Virginia’s requirements are substantially similar to the
ballot access requirements that were in place in New York prior to New York’s statute being
held unconstitutional in Rockefeller v Powers, 78 F.3d 44 (2d Cir 1999):

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With regard to the question of the substantiality of the burden placed on
candidates seeking access to the primary ballot, the district court found that
candidates without the support of the state Republican leadership were
substantially burdened by the combination of (i) the requirement that a slate of
delegates collect signatures in each district amounting to 5% or 1250
registered Republicans, whichever is less; (ii) the requirement that the
collection of signatures must occur in a period of 37 days, during which there
are several important holidays, inclement weather, school and family
vacations, and short periods of daylight; (iii) a rule limiting a voter from
signing petitions for more than one candidate, thus reducing the total pool
available to those collecting signatures; (iv) a host of rules defining what is a
valid signature, including rules as to the qualification of witnesses to signings
and inclusion of the election or Assembly district numbers of signers; and (v)
other highly technical requirements that concern the presentation of petitions
containing the signatures to election officials. We agree that this combination
of New York requirements severely hampers candidates in contacting a
sufficient number of registered Republicans and in collecting, legally
documenting, and validly presenting their signatures.
Id.
The mandatory signature requirement, which is inextricably intertwined with the residency
restriction requirements, creates a severe burden on Plaintiff’s First Amendment rights of
freedoms of speech and association. As such, it is subject to strict scrutiny analysis and the
burden shifts to the Defendants to prove the government has a compelling interest which justifies
the burden. As discussed supra, Defendants failed to demonstrate any specific, narrowly tailored,
compelling interest which would justify these burdens. For this additional reason, Plaintiff has
carried his burden to show he is likely to succeed on the merits.
C.
Submission of Signatures is Discretionary
While Plaintiff has shown a likelihood of success on the merits on its constitutional
arguments, the Court need not determine the constitutionality of section 24.2-545 B due to the
permissive nature of the signature requirement contained therein. Defendants do not contest that
the unambiguous language of section 24.2-545 B of the Virginia Code provides that “[a]ny

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person seeking the nomination of the national political party for the office of President of the
United States, or any group organized in this Commonwealth on behalf of, and with the consent
of such person, may file with the State Board petitions signed by at least 10,000 qualified
voters.” VA. CODE ANN. § 24.2-545 B (emphasis added). The legislature’s use of the term
“may” is prima facie evidence it intended the term to be permissive, and the Courts will only
construe it to be mandatory “when it is necessary to accomplish the manifest purpose of the
legislature.” Harper v. Va. Dept. of Taxation, 462 S.E.2d 892, 898 (Va. 1995).
The Virginia Supreme Court “presume[s] that the legislature chose, with care, the words
it used when it enact[s] [a] . . . statute.” Zinone v. Lee’s Crossing Homeowner’s Ass’n., 714
S.E.2d 922, 925 (Va. 2011). The Court’s presumption becomes more steadfast when “the
General Assembly has used specific language in one instance, but omits that language or uses
different language when addressing a similar subject elsewhere in the Code.” Id.
In Virginia’s election statutes, the legislature carefully chose to utilize the word “shall” in
related provisions governing the number of signatures required to be placed on certain ballots in
the state. However, section 24.2-545 B of the Virginia Code contains no such requirement.
The additional language referring to “requirements” in Section 24.2-545 does not change
the permissive connotation of the use of “may” in regards to the filing of 10,000 valid signatures.
The Defendants assert section 24.2-545’s requirement for “the names of all candidates who have
satisfied the requirements of this section” “shall appear on the ballot” of the “presidential
primary for that party” demonstrates the legislature’s intent for the 10,000 signature requirement
to be mandatory. However, the “requirement” for the petition to be filed clearly does not
overcome the presumption the legislature intended the earlier use of “may” to be construed as
permissive. Accordingly, Plaintiff is not required by Virginia law to submit 10,000 signatures to

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be placed on the ballot. For this additional reason, Plaintiff has carried his burden to show he is
likely to succeed on the merits.
II.
Plaintiff is likely to suffer irreparable harm in the absence of preliminary relief
As determined by this Court in its January 10, 2012 Order, “[t]he harm to [Plaintiff]
would obviously be irreparable.” The Court has a firm basis for its finding because the “loss of
First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Newsom ex rel. Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 261
(4th Cir. 2003) (internal quotation marks omitted) (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)). Furthermore, the Fourth Circuit recognizes that “in the context of an alleged violation
of First Amendment rights, a plaintiff’s claimed irreparable harm is ‘inseparably linked’ to the
likelihood of success on the merits of plaintiff’s First Amendment claim.” Musgrave, 553 F.3d
292, 298 (4th Cir. 2009) (quoting W. Va. Assoc. of Club Owners & Fraternal Servs., Inc. v.
Musgrave, 512 F. Supp. 2d 424, 429 (S.D. W. Va. 2007)). As set forth above, the Virginia ballot
access requirements unconstitutionally burden Plaintiff’s freedoms of speech and association.
Thus, Plaintiff has established irreparable harm.
Defendants assert Plaintiff’s attempt to secure signatures and comply with the State’s
unconstitutional interpretation of section 24.2-545 B somehow prevents him from challenging
the statute. This simply is not the law, and Defendants cite no support for this assertion.
Plaintiff’s injuries are particularly acute because the Virginia ballot access requirements
have, as applied here, prevented Plaintiff from qualifying for the ballot. If Plaintiff does not
appear on the ballot, Plaintiff will have forever lost the ability to obtain the convention delegates
from the Commonwealth of Virginia in his bid to be the Republican Party nominee for Office of

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the President of the United States in the 2012 election. Thus, in the absence of a preliminary
injunction, Plaintiff will suffer irreparable harm.
III.
The balance of the equities tips in Plaintiff’s favor
While the balancing of the equities merely requires the burden imposed on the plaintiffs
if a preliminary injunction is not granted to outweigh the burden that granting a preliminary
injunction would impose on the defendants, the balance of the equities weighs heavily in
Plaintiff’s favor. See Winter, 129 S. Ct. at 374, 378. A governmental agency “is in no way
harmed by issuance of a preliminary injunction which prevents it from enforcing a regulation,
which . . . is likely to be found unconstitutional.” Newsom, 354 F.3d at 261.
In this case, the Commonwealth will not be harmed by the issuance of an injunction
against the enforcement of the state-residency requirement.

Indeed, the only harm the

Commonwealth will suffer is in being restrained from maintaining a law that is likely to be found
unconstitutional. Plaintiff, on the other hand, is likely to suffer irreparable injury because of his
“loss of First Amendment freedoms.” The balance of the equities therefore tips decidedly in his
favor.
Defendants assert that any relief given to Plaintiff would cause Virginia to violate federal
statutes and a consent decree. This Court has already determined in its January 10, 2012 Order
that no federal statutes and no consent decrees would be violated by granting Plaintiff his
requested relief. The Court found that providing Plaintiff his requested relief would allow the
electoral officials eight days to prepare and mail ballots under current deadlines imposed by law.
What the Court did not mention is the availability to secure extensions of the deadlines of the
applicable laws. Due to the lack of hardship on the Defendants, this equitable argument clearly
weighs in Plaintiff’s favor.

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The Defendants further argue that injunctive relief (i.e. placing Plaintiff on the ballot)
would cause voter confusion. As the Court has already determined, Plaintiff is likely to succeed
on the merits of his case, which would mean his name would be ordered to be placed on the
ballot after a final hearing. Equity, therefore, is clearly in favor of including Plaintiff on the
initial ballot to avoid future voter confusion, and Defendants’ arguments are nonsensical.
Finally, Defendants argue that Plaintiff’s delay in seeking an injunction weighs in favor
of not granting an injunction. Plaintiff’s diligence in attempting to comply has been briefed by
Plaintiff, and arguments concerning Plaintiff’s diligence have been heard by the Court. Plaintiff
filed suit just days after failing to secure the unconstitutionally high number of signatures
required to be placed on Virginia’s ballot, and Defendants cannot demonstrate any prejudice
from the timing of Plaintiff’s suit. Because Virginia will be able to timely print and mail its
ballots in the event this Court grants Plaintiff’s request to be placed on the ballot, the timing in
which Plaintiff filed suit neither caused or exacerbated any burden on Defendants. In fact, if
Virginia chooses to print and mail its ballots in contradiction to this Court’s January 10, 2012
Order, its damages would be of its own making. Accordingly, the balance of the equities weighs
heavily in Plaintiff’s favor, and the Court should grant the injunctive relief requested by Plaintiff.
IV.
An injunction is in the public’s interest
The final prerequisite to the grant of a preliminary injunction is that it serve the public
interest. As the Fourth Circuit clearly stated, “[s]urely, upholding constitutional rights serves the
public interest.” Newsom, 354 F.3d at 261. Because this Court has found that Plaintiff has
demonstrated a likelihood of success on the merits of his constitutional challenge, granting a
preliminary injunction here will have the effect of “upholding constitutional rights.” These are
not only Plaintiff’s constitutional rights, but the rights of all candidates, petition circulators,

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voters, and all citizens of Virginia and the United States. It is clear that granting the injunction
would serve the public interest.
Plaintiffs Have Standing to Challenge the Constitutionality of Section 24.2-545 B
Defendants claim Plaintiff does not have standing to bring this suit for want of injury, is
fairly traceable to the residency/voter eligibility requirement. In this argument, Defendants
assert Plaintiff did not demonstrate he was ready, willing, and able to use nonresident petition
circulators and that Plaintiff’s injury was due to his inability to timely secure 10,000 valid
signatures.

Defendants ignore the inextricably combined nature of the two residency and

numeric requirements. The inability to use nonresident petition circulators has an obvious
impact on a candidate’s ability to secure more signatures than he did.
Virginia cannot reasonably argue that one unconstitutional regulation, which prevents
Plaintiff from complying with a second regulation (whether constitutional or not), prevents
Plaintiff from having standing from challenging both regulations when the regulations act in
concert with one another to cause the Plaintiff’s injury.

Further, Plaintiff was diligent in

attempting to comply with section 24.2-545 B, and filed suit mere days after it became clear the
burdens imposed by the statute prevented him from being able to comply. Plaintiff’s claims are
anything but hypothetical as alleged by Defendants—Plaintiff, Governor of the second most
populous state and a nationally recognized candidate for the Office of the President of the United
States, was kept off the primary ballot of the State of Virginia.
Plaintiff’s Claims Are Not Barred By Laches
In asserting the equitable defense of the doctrine of laches, Defendants must demonstrate
they were prejudiced by Plaintiff’s unreasonable delay in pursuing his rights or claims. See
White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990). In this pre-election suit, Plaintiff diligently

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pursued his efforts to comply with Virginia’s unconstitutional election laws. Governor Perry
suffered an injury-in-fact when he was denied a position on the Republican primary ballot on
December 23, 2011. He sought declaratory and injunction relief on December 27, 2011, a mere
four (4) days after he was informed he did not meet the petition requirements to be on the ballot.
The failure of Governor Perry to have made the same claim before the date on which
signature petitions were due does not give rise to the defense of laches. Laches simply does not
apply as a defense before a claim is ripe. See, e.g., Public Citizen v. Miller, 813 F. Supp. 821
(N.D. Ga. 1993), aff’d 992 F.2d 1548 (11th Cir. 1993) (per curium). Accordingly, Governor
Perry did not have a ripe claim until he was denied ballot access and thereby suffered any actual
harm. See Texas v. United States, 523 U.S. 296, 300 (“[A] claim is not ripe if it rests upon
‘“contingent future events that may not occur . . .”’ (quoting Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580-581 (1985) (quoting 13A Charles A. Wright, Arthur R. Miller, &
Edward H. Cooper, FEDERAL PRACTICE

AND

PROCEDURE § 3532, p. 112 (1984)) (quotation

marks omitted)).
Plaintiff’s requested relief does not prejudice Defendants. Instead, the denial of the relief
requested by Plaintiff will prejudice and abridge both Plaintiff’s and the Virginia voters’
constitutional rights. Such violations of Plaintiff’s and the Virginia voters’ constitutional rights
should not go unremedied. See McCarthy v. Briscoe, 429 U.S. 1317, 1322 (1976) (ordering a
candidate’s name to be placed on the ballot as the remedy after the candidate’s constitutional
rights were violated).
“Laches imposes on the defendant the ultimate burden of proving ‘(1) lack of diligence
by the party against whom the defense is asserted, and (2) prejudice to the party asserting the
defense.’” White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990) (quoting Costello v. United States,

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365 U.S. 265, 282 (1961)). “Where there has been no inexcusable delay in seeking a remedy and
where no prejudice to the defendant has ensued from the mere passage of time, there should be
no bar to relief.” Gardner v. Panama R. Co., 342 U.S. 29, 31 (1951).
I.
Plaintiff was diligent
“The first element of laches—lack of diligence—exists where “the plaintiff delayed
inexcusably or unreasonably in filing suit.” White, 909 F.2d at 102 (quoting Nat’l Wildlife Fed’n
v. Burford, 835 F.2d 305, 318 (D.C. Cir. 1987); citing Giddens v. Isbrandtsen Co., 355 F.2d 125,
128 (4th Cir. 1966); Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1057 (5th Cir. 1985)).
The evidence in this case establishes Plaintiff attempted to comply with Virginia’s
unconstitutional voting laws and did not sit on his rights after it became clear he would not be
placed on the ballot.
After receiving notice his name would not be placed on the ballot, Plaintiff filed this suit
four days later. Accordingly, Plaintiff cannot be charged with a lack of diligence in enforcing his
rights. See Smith v. Bd. of Election Comm’rs for the City of Chicago, 587 F. Supp. 1136, 1142
(N.D. Ill. 1984) (holding three candidates could not be charged with a lack of diligence prior to
submitting their signatures because they may well have expected to be able to comply with the
applicable statute); see also McCarthy, 429 U.S. at 1322 (overruling finding of laches defense).
II.
Defendants are not prejudiced
“The second element—prejudice to the defendant—is demonstrated by a disadvantage on
the part of the defendant in asserting or establishing a claimed right or some other harm caused
by detrimental reliance on the plaintiff’s conduct.” White v. Daniel, 909 F.2d 99, 102 (4th Cir.
1990) (citing Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 (D.C. Cir. 1982).

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In this case, the only prejudice Defendants might suffer is their inability to enforce Virginia’s
unconstitutional election laws. Defendants have taken no affirmative action to which they can
allege to have been prejudiced.
Further, the ballots for the election have not been printed, and are not due under current
Virginia law to be mailed until January 21, 2012—45 days prior to the election and eight days
after this Court will make its ruling on Plaintiff’s request for injunctive relief. See VA. CODE
ANN. § 24.2-612. If Defendants proceed to print ballots without Plaintiff’s name before this
Court makes its ruling in contradiction to this Court’s January 10, 2012 Order, any prejudice and
damage caused by having to reprint the ballots after this Court makes a ruling will be of
Defendants’ own making. Plaintiff has been diligent in seeking redress for the violations of his
constitutional rights by filing suit just days after failing to secure the unconstitutionally high
number of signatures required to be placed on Virginia’s ballot. Further, Defendants cannot
demonstrate any prejudice from the timing of Plaintiff’s suit. Equity clearly favors Plaintiff, and
Defendants’ defense of laches should be denied. McCarthy, 429 U.S. at 1322-23.
Conclusion
Plaintiff, the Honorable Rick Perry, is undisputedly a nationally recognized candidate for
the Office of the President of the United States. Virginia’s unconstitutional election laws have
unquestionably infringed on his First Amendment rights to free speech and freedom of
association. Plaintiff met his burden under Winter, and this Court should grant Plaintiff his
requested injunctive relief and order his name placed on Virginia’s primary ballot.

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Date: January 11, 2012

Respectfully submitted,
THE HONORABLE RICK PERRY
/s/ Edward Everett Bagnell, Jr.
Hugh M. Fain, III (VSB # 26494)
Email: [e-mail]
M. F. Connell Mullins, Jr. (VSB No. 47213)
Email: [e-mail]
Edward E. Bagnell, Jr. (VSB # 74647)
Email: [e-mail]
411 East Franklin Street, Suite 00
Richmond, VA 23219
Telephone: [phone]
Facsimile: [phone]
BEIRNE, MAYNARD & PARSONS, L.L.P.
Joseph M. Nixon – Lead Counsel
James E. (“Trey”) Trainor, III
Martin D. Beirne
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

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CERTIFICATE OF SERVICE
I hereby certify that on January 11, 2012, I will electronically file the foregoing document
with the Clerk of the Court using the CM/ECF System, which will then send a notification of
such filing (NEF) to all counsel of record:
E. Duncan Getchell, Jr.
Wesley G. Russell
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

Joseph N. Lief
Virginia International Raceway
1245 Pinetree Road
Alton, Virginia 24520
Telephone: [phone]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

Lee Elton Goodman
LeClairRyan, A Professional Corporation
1701 Pennsylvania Ave NW
Suite 1045
Washington, DC 20006
[e-mail]
Counsel for Pat Mullins,
in his official capacity as
Chairman of the Republican Party of Virginia.

Charles M. Sims (VSB No. 35845)
LeClairRyan, A Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Patrick Mullins,
Chairman of the Republican Party of Virginia

J. Christian Adams (VSB No. 42543)
Election Law Center, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Newt Gingrich, Jon Huntsman, Jr.
and Rick Santorum

Stefan C. Passantino
J. Randolph Evans
Benjamin P. Keane
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Telephone: [phone]
Facsimile: [phone]
Counsel for Newt Gingrich

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Craig Engle
Arnet Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Telephone: [phone]
Facsimile: [phone]
Counsel for Jon Huntsman, Jr.

Cleta Mitchell
Foley & Lardner LLP
3000 K Street, N.W., Suite 600
Washington, DC 20007-5109
Telephone: [phone]
Facsimile: [phone]
Counsel for Rick Santorum

/s/ Edward Everett Bagnell, Jr.
Edward E. Bagnell, Jr. (VSB # 74647)
Email: [e-mail]
Spotts Fain PC
411 East Franklin Street, Suite 00
Richmond, VA 23219
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

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